Taralga Landscape Guardians Inc V Minister for Planning and Another
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161 LGERA] TARALGA v MNR PLANNING 1 NEW SOUTH WALES LAND AND ENVIRONMENT COURT Taralga Landscape Guardians Inc v Minister for Planning and Another [2007] NSWLEC 59 Preston J 4-8 September, 1, 3, 6, 10 November 2006, 12 February 2007 Development — Ecologically sustainable development — Development of new energy resources — Climate change issues — Renewable energy — Intergenerational equity — Conditions of development consent founded on precautionary principle and polluter pays principle — Wind turbines — Electricity Supply Act 1995 (NSW), Pt 8A — Environmental Planning and Assessment Act 1979 (NSW), ss 5(a), 76A(7), 79, 79C, 80, 81, 88A, 91, 98, Sch 6 cl 89 — Environmental Planning and Assessment Regulation 2000 (NSW), regs 8J(4), 8J(6). Compensation — General planning controls — Wind turbines — Visual impact — Whether compensation should be payable for “blight” suffered by properties affected by development — Environmental Planning and Assessment Act 1979 (NSW), s 5(a)(ii). Ecologically Sustainable Development — Precautionary principle — Polluter pays principle — Conditions of development consent founded on precautionary principle and polluter pays principle — Wind turbines — Visual impact — Noise impact — Impact on flora and fauna — Electricity Supply Act 1995 (NSW), Pt 8A — Environmental Planning and Assessment Act 1979 (NSW), ss 5(a), 76A(7), 79, 79C, 80, 81, 88A, 91, 98, Sch 6 cl 89 — Environmental Planning and Assessment Regulation 2000 (NSW), regs 8J(4), 8J(6). Ecologically Sustainable Development — Intergenerational equity — Produc- tion of energy — Attainment of intergenerational equity in production of energy — Involves sustainable exploitation and use of non-renewable resources and substitution of energy sources that result in less greenhouse gas emissions for those that result in more. The second respondent sought development consent for construction of a set of 69 wind turbines, and associated infrastructure works, on land at Taralga. The first respondent granted development consent. The development was designated development. The history and rural landscape of Taralga was not accorded any particular intrinsic value of its own by the National Trust. 2 NEW SOUTH WALES LAND AND ENVIRONMENT COURT [(2007) Section 5(a)(ii) of the Environmental Planning and Assessment Act 1979 (NSW) provided: The objects of this Act are: (a) to encourage: (i) … (ii) the promotion and co-ordination of the orderly and economic use and development of land … Held: (1) The principles of sustainable development are central to any decision-making process concerning the development of new energy resources. One of the key principles underlying the notion of sustainable development is the concept of intergenerational equity. (2) The attainment of intergenerational equity in the production of energy involves meeting at least two requirements. The first is that the mining of and subsequent use in the production of energy of finite, fossil fuel resources need to be sustainable. Sustainability refers not only to the exploitation and use of the resource (including rational and prudent use and the elimination of waste) but also to the environment in which the exploitation and use takes place and which may be affected. The second requirement is, as far as is practicable, to increasingly substitute energy sources that result in less greenhouse emissions for energy sources that result in more greenhouse gas emissions, thereby reducing the cumulative and long-term effects caused by anthropogenic climate change. (3) The insertion of a single industrial structure (being a turbine) into the rural landscape would not be so antithetic to the landscape generally or to the outlook from the village specifically as to warrant its rejection. (4) A disaggregation approach rather than an aggregation approach should be adopted to assess the visual impact of the total project, considering whether it is necessary or appropriate to remove elements if the present total project would have an unacceptable impact but that some lesser (but still viable) project might be approved. (5) Anything other than removal of a comparatively small number of turbines would render the project uneconomic. (6) There was no compelling general visual impact basis upon which to adopt any one of the four major modification options as there was no such option which would achieve both a significant visual impact benefit for the village and leave a wind farm which would be economically viable. Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23 at [25]-[29], referred to. (7) Creating a right to compensation for “blight” caused by a development would strike at the basis of the conventional framework of land use planning and be contrary to the objective in s 5(a)(ii) of the Environmental Planning and Assessment Act 1979 (NSW). (8) Noise and visual impacts at two properties were unacceptable. Conditions should be imposed to provide the owners of those properties with the option of requiring the second respondent to acquire the properties. (9) The flora impacts should be the subject of conditions of consent. Conditions, founded on the precautionary principle, should be imposed to ensure the taking of measures to deal with any occurrences of threatened flora or native grasslands, if they are discovered subsequent to or during construction of the windfarm. (10) The likely maximum fatality rate of three wedge-tailed eagles per annum was undesirable, but did not warrant refusal. (11) A polluter pays approach to environmental harm should be adopted. A compensatory payment should be payable upon each eagle death. This results in 161 LGERA 1] TARALGA v MNR PLANNING (Preston J) 3 the environmental costs of the loss of biota being internalised by the person causing that loss. (12) In order to ensure that there is some linkage between such compensation and likely positive future outcomes for the species affected, such compensatory payment should be made to New South Wales Wildlife Information Rescue and Education Service Inc. (13) The project promoted the broader public good of increasing the supply of renewable energy. The overall public benefits outweighed any private disbenefits to the Taralga community or specific owners. Discussion of the policy framework for considering applications for development of new energy resources, including issues of climate change, sustainable development and renewable energy. Cases Cited Genesis Power Ltd v Franklin District Council [2005] NZRMA 541. Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23. Appeal The applicant appealed against the decision of the first respondent to grant consent to the second respondent’s application for development consent for construction of wind turbines and associated infrastructure works on land at Taralga. The facts of the case are set out in the judgment. R O’Gorman-Hughes, for the applicant. P Clay, for the first respondent. A Pickles, for the second respondent. Cur adv vult 12 February 2007 Preston J. Prologue 1 The insertion of wind turbines into a non-industrial landscape is perceived by many as a radical change which confronts their present reality. However, those perceptions come in differing hues. To residents, such as members of Taralga Landscape Guardians Inc (the Guardians), the change is stark and negative. It would represent a blight and the confrontation is with their enjoyment of their rural setting. 2 To others, however, the change is positive. It would represent an opportunity to shift from societal dependence on high emission fossil fuels to renewable energy sources. For them, the confrontation is beneficial – being one much needed step in policy settings confronting carbon emissions and global warming. 3 Resolving this conundrum – the conflict between the geographically narrower concerns of the Guardians and the broader public good of increasing the supply of renewable energy – has not been easy. However, I have concluded that, on balance, the broader public good must prevail. The reasons for doing so are set out in the body of this judgment. 4 Having said that, as discussed in more detail below, these proceedings have resulted in a better development with greater environmental protection – including now providing a public “right to know” as the development unfolds. 5 Finally, as also discussed more fully below, the Court’s role has enabled the inclusion of a range of conditions founded on the precautionary principle. These 4 NEW SOUTH WALES LAND AND ENVIRONMENT COURT [(2007) include, for example, new conditions to ensure measures are available to deal with any occurrences of threatened flora or grasslands if they are subsequently discovered during construction of the windfarm. 6 It is important to note that these conditions only emerged as a consequence of the third-party right of appeal to the Court – exercised by the Guardians – against the Minister’s approval of the project. 7 Whilst, no doubt, the Guardians will be disappointed with the Court’s decision, their launching of an appeal and the Court’s hearing and determination of it have made the development of this windfarm a significantly more environmentally responsible project than that originally approved. 8 In hearing and determining this appeal, I have been greatly assisted by Commissioner Moore. The proposal 9 The proponent, RES Southern Cross, lodged Development Applica- tion 241/04 with Upper Lachlan Shire Council on 10 November 2004. 10 On 15 December 2004, the Minister for Infrastructure and Planning (the Minister) directed Upper Lachlan Shire Council (the Council) to refer DA 241/04 to the Minister for determination under s 88A of the Environmental Planning and Assessment Act 1979 (NSW) (the Act). 11 RES Southern Cross seeks consent to construct and operate a windfarm at Taralga. Taralga is about 140 km south west of Sydney. It is 38 km east of Crookwell and 35 km north of Goulburn. 12 The proponent originally proposed to: 1. Construct and operate 69 wind turbines each consisting of a 65 m tower, nacelle and 3 × 45 m long fibreglass blades; 2. Construct a network of unsealed site tracks to access each turbine; install a transformer unit next to each turbine; 3.